18 Pa. Super. 64 | Pa. Super. Ct. | 1901
Opinion by
The plaintiff is an assignee of a mortgage. The defendant is a terre-tenant. The defense set up is that the mortgage was given to secure the payment of certain promissory notes of the mortgagor; that all of them are paid but two; that recovery upon the two is barred by limitation and that the mortgage is
The supplemental affidavit alleges that the two unpaid notes were taken up by the maker; that a new note was given for the amount and that this constituted a novation. The facts alleged upon which a novation is sought to be founded, are inadequate. If the new note was given before the appellant purchased the real estate, he has no right to complain. If given afterwards, he should have so said in his affidavit. But if given afterward, there is no allegation of the fact upon which
In Shrewsbury Savings Institution’s Appeal, 94 Pa. 809, a bond was given “ as collateral security for sundry notes,” etc. The note in contention was a renewal. Mr. Justice Paxson says: “ There was no agreement that the bond should stand for the renewal. We must, therefore, look at the legal effect of the condition. It was contended by the appellees, who are judgment creditors, that it was collateral to the notes merely, and not to the debt represented thereby; that the lifting of the old notes' by the renewals was a novation and satisfied the condition of the bond. The distinction between the notes and the debt is exceedingly refined. If the judgment is collateral to the notes it is also collateral to the debt, for the reason that the notes are but the evidence of the debt with a promise to pay it. Has the debt been paid ? As between parties to a note it has never been held that a renewal was payment unless so accepted and intended. (Authorities cited.) ' It follows that the indebtedness for which the judgment was given as collateral, being still unpaid, Seitz, the debtor, has no standing to allege that the note is not protected by the lien of said judgment.” The principle thus expressed was followed in the case of Laucks v. Michael, 154 Pa. 357, where a judgment was given as collateral to notes which were renewed, and has application to the case before us.
More than this, there is no inference to be drawn from the transaction as stated in the affidavits, that the renewal note was given in satisfaction or release of the mortgage. The sound conclusion is that the giving of the renewal note, whether before or after the purchase of the mortgaged property by the appellant, was but the substitution or supplementation of evidence of an unpaid debt, of which the mortgage itself was evidence and which by its lien the mortgage continued to secure.
The appellant made his purchase with knowledge of an unsatisfied mortgage showing of record that but a part of the debt was paid. Even if he were permitted to infer from the lapse of time that the right to sue on the two unpaid notes was gone,
The precise question here decided seems not to have been raised heretofore in Pennsylvania. Courts of other states, however, have passed upon it reaching conclusions similar to those here expressed: Hulbert v. Clark, 128 N. Y. 295; Joy v. Adams, 26 Me. 330; Davis v. Mann, 19 Pick. 535; Ballou v. Taylor, 14 R. I. 277. See also 2 Jones on Mortgages, sec. 1204, and cases there noted.
The judgment is affirmed.